The National Air Traffic Controllers Association (Union or
NATCA) filed a request for assistance with the Federal Service
Impasses Panel (Panel) to consider a negotiation impasse under
section 7119 of the Federal Service Labor-Management Relations
Statute (Statute) between it and the Department of Transportation,
Federal Aviation Administration, Washington, D.C. (Employer or
FAA).

The Panel determined that the parties' dispute concerning
smoking in the workplace should be resolved pursuant to written
submissions from the parties with the Panel to take whatever action
it deemed appropriate to resolve the impasse. Submissions were made
pursuant to these procedures. Additionally, a representative of the
Panel conducted site visits with the parties to three facilities,
National Airport in Washington, D.C.; Dulles Airport in suburban
Northern Virginia; and the Washington Air Route Traffic Control
Center in Leesburg, Virginia. The Panel has now considered the
entire record in this case, including a report by its
representative concerning the site visits.

BACKGROUND

The Employer is responsible for the conduct and regulation of
the nation's air traffic. It maintains some 450 to 500 air traffic
control towers, and ground-based terminals and centers nationwide.
The Union represents a nationwide bargaining unit consisting of
approximately 17,000 General Schedule employees who work as air
traffic controllers. The parties have entered into a master
collective-bargaining agreement which is in effect until May 1992.

This dispute which potentially affects all employees arose in
August 1990, when the Employer notified the Union of its intent to
issue Department of Transportation (DOT) Order 3900.47, which would
implement a new smoking policy in all space occupied and controlled
by it.

By way of background, there are 17,490 airports in the U.S.
This number includes civilian and joint civilian/military airports,
heliports, and seaplane bases in the U.S. and its territories. of
this number, 5,589 are public-use airports, while 11,901 are used
privately. The FAA operates three types of airport support
facilities: (1) Air Traffic Control Towers (ATCT); (2) Terminal
Radar Approach Control facilities (TRACON); and (3) Air Route
Traffic Control Centers (ARTCC). Bargaining-unit employees are
stationed at all three types of facilities.

An ATCT is established on an airport's premises to provide air
traffic control service on, and in the vicinity of, that airport.
There are 403 airports with towers in the U.S. The mission of
TRACONs, usually collocated with an ATCT or ARTCC, is to control
approaches, i.e., arrivals and departures. When a plane enters the
space controlled by the TRACON, it guides the plane to the
airport's runway for landing. Similarly, when planes approach for
departure, the TRACON functions to guide them into the air and
monitors them until picked up by one of 22 ARTCCs nationwide. Those

are ground-based, freestanding facilities usually located in remote

suburban areas. Their primary mission is to provide direct or
indirect support to the control of air traffic by monitoring planes
through the use of radar equipment. Each one is responsible for
monitoring airspace activity that may span several states.

Airport facilities are classified into five main categories
designated by an activity-level number I through V. The level of
classification is determined by the quantity and type of air
traffic controlled, as well as the design of the facility and
amount of radar activity. Most are Level IV or lower; however,
Level II facilities are most common.

ATCTs and TRACONs have three basic components: (1) control cab
or cab, (2) tower shaft or shaft, and (3) base building. The cab is
the primary operating space in the control tower. It must be
elevated above ground level and physically oriented relative to the
primary runways, so as to obtain the best unobstructed view of the
aircraft primary movement areas, i.e., taxiways and runways. The
tower shaft has two primary functions. First, it supports the
raised cab at the desired elevation above ground level and provides
for access to the cab via a stairway and/or elevator. A secondary
function of the shaft also may be to house ATCT functional space.

Tower shafts can be structurally independent (freestanding), or an
integral part of another related structure, such as a terminal
building or base building. The base building is a single- or
multiple-story building adjacent to the tower shaft which provides
functional space. When the base building is structurally
independent, it is usually attached to the tower shaft with an
access corridor or link. Since ARTCCs are not located at airports,
they are all freestanding structures.

The three components of the ATCT/TRACON can be combined in
various ways to design a facility with one of three basic
configurations which are: (1) freestanding functional shaft; (2)
base building and functional shaft; and (3) base building and
nonfunctional shaft. The freestanding functional shaft is the most
fundamental configuration, consisting of a cab on top of a shaft,
which utilizes the shaft for functional space. It is the basic
configuration of most low activity designs. A base building and
functional shaft is a basic configuration consisting of a cab on a
shaft with a base building. This configuration utilizes space in
both the shaft and base building for functional space. The base
building and nonfunctionl shaft has a cab on a shaft with a base
building. It differs from the two previous configurations in that
the shaft is not utilized for functional space except for minimal
amounts of mechanical and electronic equipment. Support personnel
are not housed there.

Elevators are required in all air traffic control facilities
where cab elevation is at least 49 feet above ground elevation.1/
While there is no general method governing level designations with
respect to the height of towers, Level I and II facilities are
generally 3- to 4-stories-high and not equipped with elevators.

1/ Facilities constructed prior to March 30, 1988, the effective
date of this rule, may not be equipped with elevators.

For energy conservation, ventilation in most air conditioned
spaces is held to the minimum standards. Generally, buildings with
3,000 square feet or more of air conditioned space should have
systems which provide continuous air movement. For buildings with
less than 3,000 square feet of air conditioned space, room-size
HVAC units are used. Although smoking is not permitted in the ATCT
or TRACON, it is permitted in the break rooms proximate to these
areas.

ISSUES AT IMPASSE

The parties disagree over the criteria for allowing smoking in
air traffic control facilities, whether there should be
outside-designated smoking areas, which employees may take smoking
cessation courses, and the date the smoking policy should be
implemented.

1. The Employer's Position

The Employer proposes the following:

This agreement contains the full and complete understanding of the
parties of the provisions and procedures agreed to for the
implementation of Order 3900.47 (Smoking Restrictions in
FAA-Controlled or Occupied Space). To ensure that the needs, rights
and concerns of all unit employees, both smokers and non-smokers
are recognized, the parties agree to the following:

1. Smoking is prohibited in all buildings and facilities controlled
or occupied by the FAA, except in properly ventilated and separated
areas designated by management as smoking areas.

2. A properly ventilated and separated area is one that is
physically separated from non-smoking areas by enclosed walls and

doors. It must have a ventilation system that vents tobacco smoke

to the outside so as not to enter non-smoking areas. It also must

not be an area employees are required to use.

3. If a properly ventilated and separated area exists, or if a
properly ventilated area can be separated by making minor
modifications within funding limitations, it may be designated as

a smoking area if management determines it is appropriate.

4. If a properly ventilated and separated space is not available

or cannot be made available in accordance with section 3 above,
management shall designate outside smoking areas wherever feasible.

5. The parties recognize that there are some facilities where
physical and/or operational constraints prevent the designation of
either indoor or outdoor smoking areas. To lessen the impact of the
resultant prohibition of smoking, the Employer agrees not to
implement the new smoking restrictions at these facilities until 60
days after the effective date of this agreement. During this
period, employees who smoke will be afforded an additional
opportunity to adjust to these new restrictions and, if desired,
attend agency recognized smoking reduction programs within the
commuting area. Any grant of official time is subject to
operational requirements.

The Employer contends that its proposed smoking policy would
help effectuate the recommendations of the U.S. Surgeon General who
has identified environmental tobacco smoke as a health hazard.2/ In
this regard, the proposal seeks to implement the widest possible
restrictions on smoking in FAA-controlled or occupied space or
facilities to curtail the adverse effects of passive smoke.

Because the proposal defines the term "properly ventilated and

separated area," ambiguity as to its meaning should be reduced thus
helping to avoid grievances over its interpretation. Current indoor
smoking areas would have to meet strict criteria if they are to be
retained, which is consistent with the Panel's "philosophy" on
smoking in the workplace. The Employer acknowledges, however, that
it is

2/ See The Health Consequences of Involuntary Smoke A Resort of the
Surgeon General, DHHS Pub. No. (CDC) 87-8398 (1986). U.S.
Department of Health and Human Services, Public Health Service,
Centers for Disease Control, Center for Health Promotion and
Education, Office of Smoking and Health.

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unlikely that any current indoor designated-smoking areas would be
retained under its proposal since they would not meet the new
criteria. In this regard, the Employer states that in order to
assure and maintain the integrity of the policy it is necessary to
define, structure, and isolate a designated smoking area to, as
nearly as possible, remove and prevent tobacco smoke from
contaminating work areas. This admittedly stringent isolation
requirement, though necessary to create and maintain a smoke-free
working environment, renders all current smoking arrangements
within FAA buildings and facilities unacceptable. All of the
currently designated smoking areas which are in FAA buildings are
either improperly vented and separated or are areas that employees
are required to use for other purposes.

Although the Employer is willing to make "minor modifications
within funding limitations" to separate "properly ventilated areas
from the general work environment by the construction of walls and
doors," the Employer has no intention of making major expenditures
of funds to accommodate smoking indoors.

According to the Employer, although "there are no facilities
that currently meet the standards (which its proposal would set)
for an inside smoking area where NATCA bargaining-unit members are
assigned," it is willing to designate outdoor smoking areas "when
feasible." The 22 single-level ARTCC facilities where more than
half of the controllers are stationed are equipped with outside
public address or paging systems which would allow for the
immediate recall of employees who may be outside on a smoking
break. However, it is unlikely that designated outside smoking
areas would be "feasible" at other facilities. Since "air traffic

controllers are subject to immediate recall at any time during
their assigned shift" this necessarily "puts restrictions on
controllers' mobility while on a duty shift." The Employer states
that air traffic control towers are not single-level structures and
they do not necessarily have readily accessible outside entrances
or paging systems; therefore, the designation of an outside smoking
area is not a viable alternative. The Dulles Airport air traffic
control facility, for example, is entered through the terminal area
by a series of security doors and an elevator to the operation area

on the 12th floor level. Even with a paging system, timely return
to the operational area would be impractical.

The logistical problem of leaving the facility to smoke is even

further complicated when the tower facility is built on or adjacent
to an airport terminal with its own smoking restrictions.
Designation of smoking areas in these instances is not possible.

Implementation of the new smoking policy would take place 30
days after execution of the agreement during which time management
"would designate outside smoking areas (designation of inside areas
is possible but highly improbable.) n In locations where smoking
would be banned both indoors and outdoors, controllers would have
the benefit of attending smoking cessation programs to ease the
transition to a smoke-free workplace, thereby helping to mitigate
the effect of a complete prohibition against smoking. At these
facilities, employees would have an additional 60 days to take
advantage of smoking cessation programs before the new policy would
be implemented. Thus, at those facilities only, there would be a
90-day period before implementation of the new smoking restrictions

Finally, the Employer maintains that its proposal is
consistent with Article 53, section 2, of the parties' term
agreement which requires the Employer to evaluate air quality in
its efforts to '"provide and maintain safe and healthful working
conditions." Furthermore, it is in accordance with General Services
Administration (GSA) regulations which give agency heads the right
to establish more stringent policies than those in the
regulations.3/ Since most areas which would be affected are those
commonly used by both smokers and nonsmokers, the only way to
protect nonsmokers is to ban smoking in common areas.

2. The Union's Position

The Union proposes the following:

This agreement represents the final and binding resolution of any
impact-and-implementation bargaining on the Federal Aviation
Administration no-smoking policy.

3/ 41 C.F.R. 101-20.105-3 (1990).

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Section 1: The parties agree that the issue of whether employees

are allowed to smoke in a given air traffic control facility would

be most effectively decided on a site-specific basis.

Section 2: The parties recognize that local agreements have been
reached and currently exist in FAA facilities on smoking. The
parties agree that existing policies on smoking shall remain status
quo for all bargaining-unit employees.

The parties further agree that in no event shall the smoking policy
for bargaining-unit employees be more restrictive than the existing
General Services Administration Guidelines on Smoking in Federal
Buildings.

Section 3: The Agency shall endeavor to provide at no cost to
employees smoking cessation programs to all bargaining-unit members
who request to participate. Where such programs cannot be obtained
at no cost, the Agency will bear the expense of such programs to
the extent that available funds permit. Participation in such
programs shall be on a voluntary basis.

With respect to implementation, the Union proposes that the smoking
policy should become effective at each facility upon completion of
a smoking cessation program by all interested employees stationed
there.

In support of its position that smoking policy should be
negotiated at each facility, the Union argues that the
approximately 500 air traffic controI facilities where
bargaining-unit employees are assigned vary widely in terms of
size, structure, location, number of employees, and accessibility
to the outdoors so as to preclude setting one standard policy for
all sites. To illustrate, it contrasts the 22 ARTCCs, which "are

normally no more than two stories in height with sufficient access
to the outside and generally contain a considerable amount of
segregated space used for administrative offices and other types of
work not directly associated with the actual separation of live air
traffic", with the control towers which have significantly diverse
configurations. For example, at the 13-story Dulles Airport tower,
whose elevators will soon be temporarily out of service, should
smoking be limited to outside the tower only, "even without tower
elevators going out of service, getting to and from the tower would
add a minimum of 10 minutes to what is sometimes a 10-minute break
during busy periods."

Furthermore, since controllers are subject to recall from their
breaks at any time, those who are relegated to smoking outside the
facility may have difficulty doing 50 if there is no paging system
to recall them from breaks in exigent situations. The Union notes
that some air traffic control facilities are located in nonsmoking
airports. Therefore, win order to accommodate those employees who
smoke, the Agency's proposal would require them to descend from the
Tower and exit the airport itself to an area which is not protected
from the elements or considered FAA property," thus adding to the
length of time it would take smokers to go to and from a smoking
area.

Another situation which points up the problem of establishing
a single smoking policy for all facilities is that of the "single
journeyman midshifts." In this regard, the Union contends that in
a majority of the smaller terminals, the FAA has a practice of
scheduling only one person in a tower from the hours of midnight to
8 a.m. As a result, the individual who is scheduled would have no
opportunity to leave his/her duty location in order to comply with
any further restrictions on smoking. As a result, this would create
significant enforcement problems, particularly, in those cases
where the tower does not meet the newly developed Agency standard.

Although the Union maintains that the current arrangements
and/or negotiated local agreements on smoking at the various
facilities should be retained, it is prepared to bargain over the
matter on a site-by-site basis. It denies that doing so would lead
to numerous impasses requiring the assistance of the Panel.

According to the Union, the opportunity to take smoking
cessation courses should be afforded all employees, and not merely
those assigned to facilities where there is a total indoor and
outdoor ban on smoking as the Employer proposes. With respect to
implementation, the smoking policy should become effective at each
facility upon completion of a smoking cessation program by all
interested employees stationed there. In conclusion, the Union
argues that the Employer's proposal provides no adequate
accommodation for smokers in light of its apparent plan to prohibit
smoking indoors and, at some facilities. ban it outdoors as well.

CONCLUSIONS

Having considered the evidence and arguments, we conclude that
neither

party's proposal provides an equitable solution to the issue of
smoking at